People v. Evans

FOURT, J. This is an appeal from a judgment of conviction of selling heroin.

In an information filed in Los Angeles on December 4, 1967, defendant was charged in three counts with selling heroin on September 18, 1967, September 27, 1967, and October 3, 1967, respectively. It was further charged that defendant previously had been convicted of a violation of section 266h of the Penal Code on March 21, 1960. Defendant pleaded not guilty-on December 5, 1967, and presumably denied the charge of the prior conviction. On January 16, 1968, the causes were called for trial and defendant withdrew his plea of not guilty theretofore entered and pleaded guilty to count 1 as charged. Defendant waived a jury trial as to the charge of the prior conviction and it was stipulated that the determination of the truth of the charged prior conviction and the remaining counts in the information would be disposed of at the time of sentence and judgment with reference to count 1. A motion to withdraw the plea of guilty was denied. On March 19, 1968, defendant was sentenced to the state prison, counts 2 and 3 were dismissed (apparently in the interests of justice) and the charge of the prior conviction was found to be untrue. The minutes recite that defendant was admitted to bail on appeal although admittedly he had been selling heroin and was otherwise making a living pimping and having narcotics addicts work for him both as prostitutes and as sellers of heroin.

Defendant filed a timely notice of appeal.

Apparently counsel for defendant filed an affidavit with the court with reference to the motion to withdraw the guilty plea. That affidavit is not in the record in this case and we do not know what is contained therein. There was some discussion between the judge and counsel wherein the judge noted that defendant had never “had a 1538 or never had a 995, and he never raised this issue at all. ’ ’ Presumably the issue referred [596]to was a claim of entrapment although there is nothing in the record in this ease to indicate even remotely that there was entrapment. The judge commented that defendant had sold heroin on the three occasions charged, that defendant never at any time claimed entrapment, that in the probation report defendant admitted that he had stolen the heroin, that he had had his codefendant Brenda Morris doing the same thing and for all intents and purposes defendant’s counsel stated in open court that he agreed with the judge’s comments and view of the case.